Carpenter v Morris

The appeal concerned a dispute between the appellants and the respondents arising from a partnership for the quarrying, marketing, and sale of gabbro. The first respondent had received additional payments from the partnership's financial manager without the knowledge or consent of the appellants. The respondents did not plead any defence to restitutionary liability. The matter came before Bell CJ, White JA, and Simpson AJA.

The court was required to determine whether a prior opportunity to plead a breach of fiduciary obligation and seek equitable remedies precluded the maintenance of an action for money had and received. It also considered whether the unauthorised receipt of moneys belonging to the partnership by a person who was not a bona fide purchaser for value without notice fell within an established category of restitutionary liability, and whether such unauthorised receipt by a third party was a qualifying or vitiating factor. Additionally, the court considered whether implied terms alleged by the appellants, which obliged the respondents to ensure the acquisition of necessary approvals for the quarry's operation, were necessary for the reasonable or effective operation of the alleged parol contracts.

The court held that in the absence of a pleaded defence, the appellants were entitled to restitution of the moneys received by the first respondent. Regarding the alleged implied terms, the court found that the commercial context was inconsistent with the terms as alleged by the appellants, and that such implied terms were neither necessary nor reasonable for the operation of the contracts.

The appeal was allowed in part, and the orders of the court below made on 23 December 2021 and 1 February 2022, concerning the appellants and respondents, were set aside. The parties were directed to file written submissions on specific matters within prescribed timeframes.